The opinion of the court was delivered by: COOPER
This action arises out of the public performance in the Borough of Manhattan, City of New York, of the play "Che!." and the ensuing arrests and pending prosecution by the State of New York of the author, director, actors, actresses, and other persons associated with its production (the plaintiffs herein) for obscenity,
disseminating indecent material to minors,
The play itself is not before us on this application. We have neither seen nor heard any portion of it; we are entirely unacquainted with a single word of its dialogue. The only references to it in the moving papers are to certain physical acts which are hereinafter mentioned. Plaintiffs seek a court order which will strike down the prohibitions of the penal laws referred to on the ground that on their face and as applied they do violence to their constitutional rights.
The play opened on March 22, 1969, after having given a series of public previews. Two days later, Judge Amos S. Basel of the Criminal Court of the City of New York attended a full performance of the play, and at its conclusion he signed arrest warrants for the plaintiffs which were immediately executed. Plaintiffs were thereafter arraigned on complaints charging them with a "performance which was obscene in content, said performance including scenes in which various performers fondled one anothers naked sexual organs and engaged in or aided or abetted in deviate sexual intercourse to wit, acts of oral and anal sodomy."
In their complaint, plaintiffs attack the facial constitutionality and application of all the aforementioned criminal statutes. Their prayer for relief seeks the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284; the issuance of a permanent injunction restraining the defendants Hogan, the District Attorney of New York County, and Leary, the Police Commissioner of New York City, from prosecuting the pending criminal charges and from instituting further criminal proceedings under the aforementioned statutes for any future performances of the play;
and the issuance of a declaratory judgment declaring all the aforementioned statutes "void on their face" as violative of the Constitution of the United States.
Plaintiffs' complaint alleges jurisdiction in this Court pursuant to 28 U.S.C. §§ 1331(a), 1343(3) and (4), 2201, 2202, and 2281 and 42 U.S.C. § 1981 et seq., and under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. Plaintiffs also allege that the amount in controversy exceeds $15,000, exclusive of interest and costs.
On March 27, 1969, plaintiffs presented an order to show cause, which included a temporary restraining order enjoining both the pending state criminal prosecution and further arrests for future performance of the play, to Judge Bonsal of this Court. After denying the temporary injunction and deleting it from the order to show cause, Judge Bonsal signed the order bringing on the instant motion to convene a three-judge court before this Court on April 1, 1969.
Plaintiffs' motion is opposed by both defendants who in turn cross-move to dismiss the complaint for failure to present a substantial federal question.
In ruling on plaintiffs' demand for a three-judge court, it is the function of this Court to determine whether a substantial constitutional question has been raised with respect to the state statutes under attack, whether the complaint sets forth a basis or bases for equitable relief, and whether the other requirements for a three-judge court are met. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962); Ex Parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933); Green v. Board of Elections of City of New York, 380 F.2d 445 (2d Cir. 1967); American Commuters Association, Inc. v. Levitt, 405 F.2d 1148 (2d Cir. 1969). If the complaint fails to raise a substantial federal question with respect to a state statute, a three-judge court must be denied and the action dismissed. Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965); California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S. Ct. 865, 82 L. Ed. 1323 (1938); Ex Parte Poresky, supra. The Supreme Court has stated that "[the] lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject." California Water Service Co. v. City of Redding, supra, at 255, 58 S. Ct., at 867; American Commuters Association, Inc. v. Levitt, supra; Green v. Board of Elections of City of New York, supra.
Before turning to whether plaintiffs' claims of unconstitutionality have substantiality,
we emphasize that we are not here ruling on whether the play "Che!" is obscene, or whether any of the other alleged offenses did in fact occur. We have not viewed the play; indeed, disposition of the instant motions does not require it.
In an imaginative argument, plaintiffs vigorously assert that the Supreme Court's recent decision in Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (April 7, 1969), clearly establishes that the prosecution of them for violation of the obscenity laws is unconstitutional. Suffice it to say that the Supreme Court made it quite clear that their opinion in Stanley did not affect Roth10 and its progeny:
Roth and the cases following that decision are not impaired by today's holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home. Id. at 568, 89 S. Ct., at 1249.
Plaintiffs attack the New York obscenity statute
as being constitutionally defective on its face and as applied. Both these constitutional challenges rest on the assertion that the statutory definition of obscenity
applies an improper relevant audience to judge the prurient-appeal phase of the obscenity test. Section 235.00 of the New York Penal Law provides, in part, that the "[predominant] appeal [to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism] shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience." Plaintiffs contend that "ordinary adults" are the wrong audience to judge the predominant appeal of "Che!". They assert that "the people who see 'Che' are the off-off-Broadway theatre-goers who were a far more sophisticated audience, both intellectually, educationally and culturally than the 'ordinary person'."
Apparently plaintiffs believe that their play would not appeal to the prurient interest of this vaguely defined off-off-Broadway group.
In Mishkin v. New York, 383 U.S. 502, 508-509, 86 S. Ct. 958, 963-964, 16 L. Ed. 2d 56 (1966), the Supreme Court recognized that:
Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. The reference to the 'average' or 'normal' person in Roth * * * does not foreclose this holding. In regard to the prurient-appeal requirement, the concept of the 'average' or 'normal' person was employed in Roth to serve the essentially negative ...